Conditions for payment of compensation for early dismissal
When liquidating an organization or reducing staff, the employer is obliged to notify its employees 2 months in advance (Part 2 of Article 180 of the Labor Code of the Russian Federation). This is done in writing by sending a notice to the employee.
An employee may resign earlier than the period specified in the notice, receiving additional compensation for this. To do this, he needs to give his consent to early dismissal: write a statement or indicate on the notice of dismissal that he agrees to terminate the contract ahead of schedule.
For information on how to prepare an application for early dismissal, see this article.
A complete list of payments to an employee in case of staff reduction. Receipt procedure
Staff reduction is a procedure that employers usually carry out in moments of crisis for the company. However, its use imposes certain obligations on the organization’s management towards dismissed employees.
The laws and regulations of the Russian Federation provide for compensation payments to workers so that they have the opportunity to survive the period of job search and employment in a new place without loss of income. Citizens can count on financial support for several months after dismissal.
Procedure for calculating compensation
Compensation for early dismissal is paid for the number of days remaining until the day of termination of the employment contract specified in the notice. The calculation is based on the employee’s average earnings. That is, the sooner the employee quits after receiving the notice, the more money he will receive.
Compensation for early dismissal is calculated according to the formula (part 3 of article 180 of the Labor Code of the Russian Federation, clause 9 of the Regulations, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922):
SDZ x KD
Where:
SDZ - average daily earnings of an employee;
KD - number of working days before dismissal.
What is an employee entitled to upon dismissal due to a reduction in staff?
If an employee is dismissed on this basis, he is entitled to the following payments:
- wages for the last month, equal to the days worked (Article 140 of the Labor Code);
- severance pay (Article 178 of the Labor Code of the Russian Federation);
- compensation for remaining unused vacation days (Article 127 of the Labor Code of the Russian Federation);
- financial support for 2 months from the date of layoff until new employment;
- financial assistance for the 3rd month after layoff, if the employee is registered with the Employment Center and has unemployed status;
- additional monetary compensation in case of dismissal of an employee before the end of the specified period before layoff (Article 180 of the Labor Code of the Russian Federation);
- other payments, if they were officially specified in the employment contract in accordance with Art. 135 Labor Code of the Russian Federation;
- payment of temporary disability certificates to citizens who have been injured or ill within 30 days after a reduction in the amount of 60% of the average wage for the last two years (clause 3 of Article 13 of Federal Law No. 255-FZ).
Expert opinion
Polyakov Pyotr Borisovich
Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.
To calculate average monthly earnings, salary data is taken for the last 12 months before dismissal, excluding amounts paid for vacations and sick leave (Article 139 of the Labor Code of the Russian Federation).
This is important to know: Application for dismissal to care for a child under 14 years of age: sample 2021
An example of calculating additional compensation for early dismissal
Let's look at how compensation is calculated for early dismissal.
Example
10.12.2020 Stepanov V.S. notified of the upcoming termination of the employment contract due to liquidation on 12/15/2020. He retired early on October 16, 2020. The number of working days before dismissal by notice is 42 (from 10/17 to 12/15). The number of days actually worked over the last 12 months (September 2021 – October 2019) is 248. The average monthly salary is 45,000 rubles. Salary for the billing period (last 12 months) - 540,000 rubles.
Let us determine the amount of compensation that Stepanov will receive upon early dismissal.
We calculate the average daily earnings: 540,000: 248 = 2,177.42 rubles.
We calculate the amount of compensation for early dismissal: 2,177.42 x 42 = 91,451.64 rubles.
Thus, Stepanov will receive 91,451.64 rubles for early termination of the employment contract.
What accruals must the employer make?
The list of compensations and payments that laid-off workers should receive is specified in the Labor Code of the Russian Federation and other regulations.
Severance pay: calculation procedure, amount, terms
This compensation is a mandatory payment upon dismissal of an employee under paragraphs 1 and 2 of Art. 81 Labor Code of the Russian Federation. Features of the manual:
- compensation is paid upon dismissal for the month following the layoff, even if the employee intends to get a new job;
- its size is the amount of the employee’s average monthly earnings for the last year.
For the period from September 16 to October 15 inclusive, 22 working days are obtained. The period of the last 12 months of work, from September 16, 2018 to September 15, 2021, includes 247 working days. Vacation of 28 days is subtracted from them, resulting in 219 days. Average daily earnings are:
The severance pay is equal to: 22 * 1861.9 = 40961.8 rubles.
For some employees, according to the Labor Code of the Russian Federation, other payment amounts are provided:
- citizens who have signed an employment contract for a period of less than two months are not paid severance pay (Article 292 of the Labor Code of the Russian Federation);
- persons hired to perform seasonal work are provided with compensation in the amount of two weeks' average earnings (Article 296 of the Labor Code of the Russian Federation);
- citizens working in the Far North are provided with cash assistance in the amount of three average wages, which they can receive upon dismissal; by decision of the Central Labor Office, payment can be made up to six months after the layoff (Article 318 of the Labor Code of the Russian Federation);
- upon dismissal due to staff reduction of persons holding management positions, at the initiative of the employer, compensation is provided in the amount of three salaries (Article 279 of the Labor Code of the Russian Federation).
Article 296 of the Labor Code of the Russian Federation. Termination of an employment contract with employees engaged in seasonal work
An employee engaged in seasonal work is required to notify the employer in writing of the early termination of the employment contract three calendar days in advance.
The employer is obliged to warn an employee engaged in seasonal work about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization's employees in writing against signature at least seven calendar days in advance.
When an employment contract with an employee engaged in seasonal work is terminated due to the liquidation of the organization, reduction in the number or staff of the organization's employees, severance pay is paid in the amount of two weeks' average earnings.
Rules for calculating compensation during the job search
To receive this benefit, the following conditions must be met:
- registration with the Employment Center as an unemployed person was carried out within 14 days after the layoff;
- the search for work during the first month after dismissal was unsuccessful (with unemployed status).
The calculation of the compensation amount is carried out in the same way as the calculation of severance pay. The number of working days of the month is calculated and multiplied by the average daily earnings. The payment is made by the employer after the end of the pay period. Compensation for the third month is issued only by decision of the employment service for citizens registered with it.
What is the period of payment in the Far North?
Citizens dismissed from enterprises in the Far North have the right to receive monetary compensation within three months after dismissal. To do this, they do not have to register with the Center for Significance. Payment can be made in two ways:
- a lump sum of three salaries upon dismissal;
- payment of severance pay in the amount of average monthly earnings upon dismissal and receipt of compensation for the next two months on paydays.
This is important to know: Report on voluntary dismissal of a serviceman: sample 2021
To extend the period of receiving financial assistance to six months, the following conditions must be met:
- registration with the Central Employment Service within 30 days after the layoff;
- lack of work and unemployed status;
- decision of the Central Bank on payment of compensation for 4, 5 and 6 months.
For unused vacation
- The number of days is calculated using the formula: number of days of leave/12 months*number of months worked. It turns out 21 days.
- Average daily earnings are calculated using the formula: average daily earnings = amount of annual earnings/12/29.3. It turns out 1262.8 rubles.
- Amount of compensation = average daily earnings * number of unused vacation days. It turns out 26518.8 rubles.
Total I.I. Ivanov must be paid compensation in the amount of 26,518.8 rubles.
Deadline for payment of compensation for early dismissal
Additional compensation for early termination of an employment contract must be paid on the day of dismissal. All other “severance” payments are paid on the same day:
- salary for time worked before dismissal;
- compensation for unused vacation;
- severance pay.
Earnings during employment are not paid on the day of dismissal, since it is impossible to calculate the period for which it will be accrued.
Additional compensation, like all other payments, is transferred to the employee’s bank card (if the salary was previously transferred to it) or issued from the cash register.
How is severance pay paid?
All required payments are issued to the employee on the day of dismissal. The accounting department of the enterprise is engaged in registration and calculations. To receive compensation for the second month, a citizen must provide his former employer with a work book to confirm his lack of work. To receive benefits for the third month, you will need an additional document from the Central Employment Center with a decision to provide compensation.
Severance compensation payments, which are accrued to an employee upon layoff, are not subject to income tax (clause 3 of Article 217 of the Tax Code of the Russian Federation). The exception is an amount exceeding three times the average monthly salary and compensation for unused vacation days.
Early layoff
According to Article 180, early dismissal is possible even with layoffs. This procedure retains all payments and compensation for the employee, as with a standard reduction. When reducing staff, it is required to notify the employee of the exclusion of his position from the staffing table two months before the actual severance of the employment relationship. After certain measures are taken, an employee can be laid off ahead of schedule, that is, his dismissal occurs on any day between the notification and the actual layoff.
Important! In case of early dismissal, the standard procedure for laying off an employee under the regular option is followed. This is necessary to comply with all legal regulations and labor rights of the employee.
There are several important conditions for early dismissal:
- with any initiative of one of the parties, the other party must give consent in writing. This moment must be framed;
- all payments must be made in full, including additional compensation for the period not worked before the original date of departure;
- all guarantees for the employee are retained in accordance with dismissal under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, which is reflected in the labor contract;
- Before the layoff, all measures must be taken, including notifying organizations (CZ and trade union) and offering available vacancies, for which a written refusal from the employee has been issued.
In fact, the early layoff procedure proceeds according to the standard plan until the decision on early termination of the employment contract is made. Procedure:
- the decision to introduce a new type of staffing table and reduce a number of positions;
- issuing orders and issuing notifications;
- provision of available vacancies based on preferential rights;
- the beginning of the early layoff procedure by agreement of all parties;
- dismissal and settlement with payments and compensation.
Until the employee is notified, the commission that develops the layoff plan must take into account all the individual characteristics of the employees, including benefits and preferential rights. It is also worth considering that a number of categories of employees cannot be laid off, which retains their non-reducible positions. For example, such a problem may arise with a person who is on maternity leave.
The final stage of early layoff is considered to be the receipt by the employee of a full payment and all payments required by law.
Dismissal procedure
Let us consider the stages, and also describe their nuances and actions necessary for the legality of the procedure.
The decision to start downsizing. The employer has every right to accept it at his own discretion and choose any suitable time. Moreover, he is not obliged to explain the reasons or report to anyone.
Definition of beneficiaries. There are citizens who, when laid off, must be retained in their positions in the first place.
Reduction order . Within 3 days after publication, it is handed over to those dismissed for review, each individually. This is not yet an order of dismissal in form T-8 or T-8a, but only about a planned event.
Notification . Under standard circumstances, the employer is required to notify staff of layoffs at least 2 months in advance. until the last day of work.
If there is agreement with the person being laid off, then he has the right not to comply with this rule, but then he is obliged to compensate this period or its balance with money, based on the average monthly earnings. This is the main nuance of payments for early dismissal during layoffs. Each of the parties has the right to propose not to comply with the notice period, and the employee must have written consent to this.
Order of dismissal under clause 2 of Art. 81 TK . It can be published not only on the deadline for work, but also several days before it. Awarded against signature within 3 days. from the date of signing for each person leaving. This also applies to the T-8a form (mass layoff) - it is given to each person being laid off.
This is important to know: Can they be fired during or after the probationary period at the initiative of the employer?
Finishing measures. On the last working day, a personal card (T-2) is filled out, a mark is placed in the work book, which is handed to the employee. On the same day they pay him in full.
What to do if payments are not paid?
If the employer did not transfer the funds on time, then he is obliged to compensate them and a penalty of no less than 1/150 of the key rate (Article 236 of the Labor Code of the Russian Federation) for each day of delay.
If an employee’s rights are violated, they contact the labor inspectorate or the labor dispute commission. But these bodies do not have the right to recover material and moral damage from the employer; they can only issue fines and issue orders that the employer can ignore.
Information
It makes sense to contact these authorities only in order to have additional evidence of ignoring legal requirements. Often, these authorities, if the issue concerns payments, immediately recommend that citizens go to court - this will save time and effort. It should be remembered that non-payment of wages is a criminal offense, so you can also notify the prosecutor’s office about this fact.
Applying to the court at the employer’s location with a claim is the most effective way to solve the problem. It is this body that has the right to collect money. It should be remembered that late interest must also be included in the claim. They can be increased at your own discretion, if there are reasonable grounds for this (money was required for treatment, loan repayment, etc.).
Payments
Let's take a closer look at payments. The following is calculated and issued:
- for actual work;
- compensation to the employee if he agrees to leave without the employer complying with the notice period;
- for vacations;
- severance pay.
Funds for actual time worked
Almost always, upon dismissal, there are a few days left until the end of the month; accordingly, for this time, they are paid not the full salary, but funds in proportion to the days worked. They are calculated as follows: the average daily earnings are calculated based on the average monthly salary for the year. Next, the amount of income received per day is multiplied by the days actually worked.
Compensation if the parties agree not to comply with notice periods
In case of early release of personnel due to reduction under Art. 180 of the Labor Code of the Russian Federation, employees, with their written consent, are entitled to the monetary equivalent of the time given to management to inform the staff about dismissal (2 months in advance or in proportion to their balance).
The volume of these funds is determined in the same way as we described in the paragraph above.
Compensation for vacations
According to Art. 127 of the Labor Code of the Russian Federation, everyone is guaranteed the equivalent of unused days of rest in money for the entire period of work. All paid vacations are compensated.
The amounts are determined based on Art. 139 of the Labor Code of the Russian Federation, Resolutions No. 169 (“Rules on vacations”) and No. 922 (“On the procedure for calculating average wages”).
First, average income per day is calculated according to the norms of Resolution No. 922. It also contains a list of what is not included in the calculation (travel allowances, social benefits, financial assistance).
Information
The equation looks like this: first, they sum up the entire annual income, divide it by 12 - this is the average value for the month. Then, it is divided by 29.3 (the average number of days in a month) - the average daily income is obtained. It is multiplied by the number of days not taken off, information about which is clarified in the HR department.
If you count working (not calendar) time, then the equations are the same, but the average values for the month are divided into days in working weeks.
Severance pay
In addition to severance pay in the amount of average monthly earnings, the employee retains this salary for 2 months, 3 - if the person registered with the employment authorities within 2 weeks. from the moment of dismissal; up to 6 – employed in the Far North.
Information
The rules are standard: the first is given in advance immediately after leaving, the next - for the period of employment for each month.
Features of calculation and payments
All payments are calculated in the accounting department. There, data is entered into all transactions and financial documents that represent reporting. Payments that are subject to taxation are also made in various forms, including reporting 6 personal income tax. These include all fixed assets, as well as severance pay that exceeds the limit. Often this can happen due to an additional agreement or collective agreement, which provides for increased standards for layoffs.
Important! The employer must make all calculations and pay the funds on time and without reducing the amounts. Everything that is due to an employee in case of early reduction of staff is paid on the day of dismissal. If there is a delay, the employee has the right to sue.
When making payments, the employee receives funds from which all fees, including insurance and tax, have already been deducted. This is reflected in the pay slip, which is issued together with the work report. Withheld funds must be registered in the accounting department and transferred to the relevant authorities within the time limits established by tax legislation. This must be done by the employer, since it is he who is responsible for contributions from employees.
Early dismissal during staff reduction allows the employer to vacate a position before the original dismissal date, which is regulated by notice. All due payments and compensation to the employee must be paid on the last working day. The accountant must include all amounts, including mandatory additional compensation, in the reporting. When calculating, the employee receives an amount from which all deductions have already been deducted.
Types of payments
All those laid off due to staff reduction receive several types of payments:
- Severance pay. Its size corresponds to the average monthly salary, but may be more. If a specific amount is specified in the collective agreement concluded between the employer and the trade union, then the laid-off employee will receive it, regardless of the amount of his salary.
- Payments while looking for a new job. For two months following dismissal, the employee will receive an amount equal to the average monthly earnings at the previous place of work. If a citizen registered with the employment service within two weeks, but was not employed for two months, then he can receive compensation in the third month.
- For unused vacation. In case of layoffs, the administration of the enterprise must pay in full for all unclaimed vacations and time off.
